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Legal news from Tuesday, November 30, 2010




Gaza rights situation not improving despite Israel easing blockade: report
Zach Zagger on November 30, 2010 4:19 PM ET

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[JURIST] Six months after Israel announced that it was easing the blockade of the Gaza Strip [BBC backgrounder], there is little sign of economic improvement for the struggling territory, according to a report published Tuesday by 25 human rights groups including Amnesty International [advocacy website]. The report, entitled "Dashed Hopes" [text, PDF] says that, though there has been some increase the amount of food stuffs allowed to enter the Gaza Strip, there is still a lack of raw materials for factories and other necessary supplies being let into the territory. The report says this is destroying the Gaza Strip's weak economy and keeping most of its people dependent on foreign aid. According to the report, 39 percent of the residents are unemployed and 80 percent of the population is dependent on foreign aid because they cannot afford necessary goods. The groups allege that the blockade is in violation of international law and that Israel is violating its legal duty as an occupying nation to ensure the welfare of the residents. The Israel Coordinator of Activities in the Territories responded that the accusations by the rights groups were biased and distorted [Jerusalem Post report] and meant to mislead the public. Israel said it is committed to carrying out the easing of the blockade and wants to ensure that the raw materials it allows into the territory cannot be used for terrorist or militaristic activities.

The Gaza Strip blockade brought international attention back on the Israeli-Palestinian conflict after a May 31 raid by the Israeli military of a Turkish ship bound for the strip left nine dead. Under international pressure to lift the blockade, Israeli Prime Minister Benjamin Netanyahu [official profile] in June announced [JURIST report] that the Security Cabinet agreed to ease the nation's land blockade of the Gaza Strip. Also in June, the International Committee of the Red Cross (ICRC) [official website] called for an end [JURIST report] to the blockade, labeling it a violation of international humanitarian law under Article 33 of the Geneva Conventions [text; ICRC backgrounder]. Israel has so far refused an international inquiry [JURIST report] into the flotilla attack. The UN Human Rights Council [official website] condemned [JURIST report] Israel's raid on the ships and initiated an independent investigation into possible violations of international law. The Turkish ship on which the violence occurred was one of six organized [Guardian backgrounder] by the Free Gaza Movement [advocacy website] to carry protesters and humanitarian supplies to the isolated Palestinian enclave.




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Supreme Court hears California prison overcrowding case
Jaclyn Belczyk on November 30, 2010 3:22 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in Schwarzenegger v. Plata [oral arguments transcript, PDF; JURIST report] on an order to reduce the California prison population [JURIST news archive]. In August 2009, a special panel of federal judges ordered [opinion, PDF; JURIST report] California to reduce its prison population by about 46,000 inmates, finding that the prisons are overcrowded. The panel approved [order, PDF; JURIST report] a revised prison reduction plan [text, PDF] in January, but action on the plan has been delayed, pending the government's Supreme Court appeal. Counsel for the state of California argued that the "extraordinary and unprecedented order ... requiring the release of between 36,000 and 45,000 inmates ... is extraordinarily premature." Counsel for the prisoners argued that the court must allow the lower court to provide a remedy for 20 years of overcrowding that has violated inmates' constitutional rights. The justices appeared split with the more conservative justices favoring California's position and the liberal justices favoring the prisoners'. Justice Anthony Kennedy may cast the deciding vote.

In CIGNA Corp. v. Amara [oral arguments transcript, PDF; JURIST report], the court heard arguments on what "showing" is required to entitle participants of the Employee Retirement Income Security Act (ERISA) [materials] to recover benefits where there has been an alleged inconsistency between the explanation of benefits and the terms of the plan. The US Court of Appeals for the Second Circuit applied a "likely harm" standard when affirming the district court's ruling. The circuit courts are deeply divided over this issue, with some requiring a showing of prejudice or reliance in order to recover benefits and others only requiring a discrepancy between the explanation of benefits and the terms of the plan. The Second Circuit has been the only circuit to apply the "likely harm" standard.




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ICJ orders DRC to compensate Guinea for false detention of businessman
Julia Zebley on November 30, 2010 2:16 PM ET

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[JURIST] On Tuesday, the International Court of Justice (ICJ) [official website] ordered the Democratic Republic of Congo (DRC) [BBC backgrounder] to pay an undetermined amount to Guinea for the 1988 arbitrary imprisonment of a Guinean businessman. The tribunal found [judgment, PDF] that the DRC violated Articles 6 and 12 of the African Charter on Human and Peoples' Rights [text] as well as Articles 9 and 13 of the International Covenant on Civil and Political Rights [text] by the arrest, two month imprisonment, and expulsion of Ahmadou Sadio Diallo [ICJ case materials]. The ICJ did not find the DRC in violation of any international law when it seized the two companies, Africom-Zaire and Africontainers-Zaire, that Diallo founded in the DRC and prevented him from continuing business with them, however the court did find that his detention and expulsion were contrary to law, stating:
The DRC has failed to produce a single document or any other form of evidence to prove that Mr. Diallo was notified of the expulsion decree at the time of his arrest on 5 November 1995, or that he was in some way informed, at that time, of the reason for his arrest. Although the expulsion decree itself did not give specific reasons, as pointed out above, the notification of this decree at the time of Mr. Diallo's arrest would have informed him sufficiently of the reasons for that arrest for the purposes of Article 9, paragraph 2, since it would have indicated to Mr. Diallo that he had been arrested for the purpose of an expulsion procedure and would have allowed him, if necessary, to take the appropriate steps to challenge the lawfulness of the decree. However, no information of this kind was provided to him; the DRC, which should be in a position to prove the date on which Mr. Diallo was notified of the decree, has presented no evidence to that effect.
Earlier in the proceedings, Guinea demanded a payment of 36 billion pounds [BBC news]. The DRC has six months to come to a settlement with Guinea, or the ICJ will determine a settlement amount.

Diallo was a Guinean citizen living in the DRC, then known as Zaire, where he established the import-export companies Africom-Zaire and Africontainers-Zaire, which dealt with the containerized transport of goods. After attempting to to collect on debts from business partners Zaire Shell, Zaire Mobil, Zaire Fina and Gecamines, Diallo was arrested and imprisoned, and then released after two months, in 1988. After seizing several properties of Diallo, the Zairean Prime Minister issued an expulsion decree against him in 1995, when he returned to Guinea. Guinea brought suit [application, in French, PDF] against the DRC in 1998, contending that Diallo was "unlawfully imprisoned by the authorities of that State" and "divested from his important investments, companies, bank accounts, movable and immovable properties, then expelled." The DRC argued [press release, PDF] that since it was no longer the nation of Zaire, it could not be held liable to what had occurred under that regime, and also claimed that Diallo had not exhausted all local remedies.




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Serbia requests extradition of accused Nazi living in US
Matt Glenn on November 30, 2010 1:51 PM ET

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[JURIST] Serbian Justice Minister Snezana Malovic [official profile] said that Serbia has filed documents asking the US to extradite accused Nazi war criminal and naturalized US citizen Peter Egner [JURIST news archive] to Serbia so that he can stand trial on war crimes charges. Serbian prosecutors claim that the Yugoslavia-born Egner [AP report] was part of the Einsatzgruppen [USHMM backgrounder], a German military unit blamed for the deaths of more than 17,000 Serbian Jews and other minorities during Germany's occupation of Serbia in World War II. Egner admitted to US federal officials in 2007 that he had been a member of the squad, which is alleged to have rounded up women and children in specially modified vans to gas them with carbon monoxide. He is currently fighting efforts by the US Department of Justice (DOJ) [official website] to revoke his citizenship [JURIST report], which would allow the government to extradite him to Serbia to stand trial on numerous counts of war crimes.

Serbia's Office the War Crimes Prosecutor [official website] announced in 2009 that it would ask the US for Egner's extradition [JURIST report]. In July 2008, Serbian prosecutors confirmed [JURIST report] that they were gathering evidence for a case against Egner. Earlier that same week, the DOJ filed a complaint [text, PDF] in the US District Court for the Western District of Washington [official website] seeking to revoke Egner's US citizenship. Egner became a US citizen in 1966 but failed to disclose his Nazi service on his citizenship application. The DOJ argued that he was ineligible for citizenship both because of his service and because he concealed that information on his application.




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EU announces antitrust probe into Google business practices
John Paul Putney on November 30, 2010 1:15 PM ET

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[JURIST] The European Commission [official website] on Tuesday announced a formal investigation [press release] into allegations that Google [corporate website; JURIST news archive] abused its dominant market position by manipulating search results to give its own services preferential placement. The investigation will be the first formal investigation by a major regulatory agency [Al Jazeera report] into the Internet search giant's business practices. The announcement follows complaints from three Europe-based search service providers that Google lowered the ranking of unpaid search results of their competing services and imposed exclusivity obligations on advertising partners with the goal of shutting out competition. The three companies that lodged complaints are UK-based price comparison site Foundem, French legal search engine ejustice.fr and Italian shopping site Ciao [websites], owned by Microsoft through its own search engine Bing, which has struggled to wrestle online market share [AP report] away from Google. In a statement [text], Google stressed:
We've always focused on putting the user first by providing the best possible answers as quickly as possible - and our product innovation and engineering talent have delivered results that users seem to like, in a world where the competition is only one click away. ... We built Google for users, not websites. ... Not every website can come out on top, or even appear on the first page of our results, so there will almost always be website owners who are unhappy about their rankings.
Google pledged to "work closely with the Commission to answer their questions"

Currently, Google faces separate antitrust inquiries in Italy, Germany and France, in addition to the EU probe. Recently, Google has also faced criticism on privacy and copyright protection in several countries. Earlier this month, the US Federal Communications Commission (FCC) [official website] confirmed that it is investigating Google [JURIST report] to determine if it violated communications laws when its Street View vehicles inadvertently collected private user data, including passwords and URLs, over WiFi networks. Additionally, the UK Information Commissioner's Office (ICO) [official website] announced that the company committed a "significant breach" [JURIST report] of the country's Data Protection Act [text] through its Street View data collection. In October, the US Federal Trade Commission (FTC) [official website] announced that it had ended an inquiry [JURIST report] into the company's internal policies and procedures that led to the breach. Also in October, Canadian Privacy Commissioner Jennifer Stoddart [official website] announced that the Street View breach violated [JURIST report] the country's Personal Information Protection and Electronic Documents Act [text, PDF]. Investigations were also initiated in Australia, South Korea and Spain [JURIST reports]. Also this month, Google announced that it had settled [JURIST report] a class action lawsuit regarding privacy breaches related to its Google Buzz social networking program.




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Supreme Court upholds limits on municipal liability
Matt Glenn on November 30, 2010 1:14 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] unanimously in Los Angeles County v. Humphries [Cornell LII backgrounder] that, when alleging a municipality violated their civil rights under 42 USC § 1983 [text], plaintiffs "must show that their injury was caused by a municipal policy or custom," even if they are only seeking injunctive or declaratory relief. Tuesday's opinion, authored by Justice Stephen Breyer, drew heavily from Monell v. New York City Department of Social Services [opinion text], which held that, to prevail on a § 1983 claim for monetary damages, plaintiffs must show a municipal policy or custom that caused their injuries. The court rejected the petitioners' arguments that Monell should me be limited to monetary damages, pointing out that language in the statute does not differentiate between types of relief requested. The court reasoned that its ruling in Monell left no room for holding municipalities strictly liable for the actions of their employees or for actions that are not part of that municipality's policy or custom. The court remanded the case to the US Court of Appeals for the Ninth Circuit for proceedings consistent with Tuesday's ruling. Justice Elena Kagan took no part in the decision.

The court heard oral arguments [oral arguments transcript, PDF; JURIST report] in October after agreeing to hear the case [JURIST report] in February. The case arose after two parents were unable to have their names removed from California's Child Abuse Central Index [official materials], a database that collects reports of child abuse, after the charges against them were dismissed. The Ninth Circuit found [opinion, PDF] that the inability to remove "factually innocent" suspects from the database violated their rights under the Fourth Amendment and subsequently awarded $652,000 in attorney's fees for the appeal. The county challenged the Ninth Circuit's ruling on the grounds that the couple failed to show that the county had adopted a policy or practice that resulted in the constitutional violation, as required by Monell and that their failure to do so meant that they were not "prevailing parties" for the purposes of fee awards under 42 USC § 1988 [text].




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First UK hate crimes report reveals 50,000 incidents reported last year
Drew Singer on November 30, 2010 1:03 PM ET

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[JURIST] More than 50,000 hate crimes were reported last year in England, Wales and Northern Ireland, according to a report [text, PDF; press release] released Tuesday, the first time such a report has been made public. The Association of Chief Police Officers [association website], a private company consisting of police officers from England, Wales and Northern Ireland, said that it has published the data with the hopes of encouraging other victims to come forward and report crimes. According to the report, police view an apparent increase in these figured from 2008 as a positive sign, indicating that more crimes are being reported and not necessarily that more crimes are being committed. In all, 52,028 crimes were reported in 2009 with the motivation for the offense being prejudice:
  • Race: 43,426
  • Religion/Faith: 2,083
  • Sexual Orientation: 4,805
  • Transgender: 312
  • Disability: 1,402
  • Total: 52,028
The report says that 703 of the faith-based crimes were of antisemitic nature.

Last week, the FBI reported a decrease in US hate crimes [JURIST report] for 2009. The number of reported incidents was down to 6,604 from 7,783 in 2008, while the number of reported victims was down to 8,336 from 9,691. In June, Canadian police reported a 35 percent increase in hate crimes [JURIST report] from 2007 to 2008. Conversely, Russian racial hate crimes decreased slightly in 2009 [JURIST report] because of increased police efforts, according to a report from the SOVA Center [advocacy website] in January.




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Second US soldier charged in probe into Afghan civilian deaths
Aman Kakar on November 30, 2010 12:10 PM ET

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[JURIST] Major General Curtis Scaparrotti of the US Army [official website] on Monday ordered a court-martial for Staff Sergeant David Bram stemming from a larger case involving five soldiers accused of killing Afghan citizens. Bram is charged [CNN report] with conspiracy to commit assault and battery, unlawfully striking another solider, violating a lawful order, dereliction of duty, cruelty, maltreatment and endeavoring to impede an investigation. He is not among the five men accused of murder and conspiracy to commit murder. If convicted of all the charges, he could face nine-and-a-half years in prison. Bram is accused of severely beating an Army private [Reuters report] in his unit to keep the solider from informing superiors about alleged drug abuse within the unit.

This the second court-martial resulting from an investigation into 12 infantry men accused of terrorizing civilians and fellow soldiers and illegal drug use in Afghanistan. In June, the US Army charged Specialist Jeremy Morlock [JURIST report] with three counts of premeditated murder and one count of assault in the death of three Afghan civilians. The Army announced in May [JURIST report] that its Criminal Investigation Command was opening an investigation into the civilian deaths in Kandahar. The charges are the latest in a number of incidents involving US soldiers in both Iraq and Afghanistan. In April, a military appeals court reversed the conviction [JURIST report] of US Marine Sgt. Lawrence Hutchins III for the 2006 killing of an Iraqi civilian, citing lack of a fair trial. Hutchins was serving an 11-year sentence, reduced from 15 years [JURIST report], for his role in the April 2006 kidnapping and murder of an Iraqi civilian. In December, former soldier Steven Green appealed his conviction [JURIST report] for his role in the rape and murder of a 14-year old Iraqi girl. Green was sentenced to five consecutive life terms [JURIST report] in September.




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Federal judge sentences Somali pirate to 30 years
Megan McKee on November 30, 2010 9:28 AM ET

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[JURIST] A judge for the US District Court for the Eastern District of Virginia [official website] on Monday sentenced [press release] Somali citizen Jama Idle Ibrahim to 30 years in prison for an April attack on the USS Ashland in the Gulf of Aden. Ibrahim, originally charged with piracy [JURIST news archive], reached an agreement with prosecutors to plead guilty [JURIST report] to charges of attacking to plunder a vessel, committing an act of violence against persons on a vessel and the use of a firearm in the commission of a crime of violence. Monday's sentencing marks the first in Norfolk for acts of piracy in more than 150 years. Ibrahim still faces additional sentencing after pleading guilty [JURIST report] in the District of Columbia to charges relating to a 2008 attack on the M/V CEC Future.

Earlier this month, a federal jury in Virginia convicted [JURIST report] five Somali men on charges of piracy for their roles in an April attack on the USS Nichols. In August, piracy charges against Ibrahim and five other defendants were dismissed [JURIST report] when federal Judge Raymond Jackson ruled that piracy, as defined by the law of nations, does not include violence or aggression committed on the high seas, and rejected the government's argument for an expanded reading of the statute. Piracy remains an issue of international concern, as few countries have been willing to prosecute suspected pirates. The few that have attempted to do so include Germany, Kenya, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].




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Federal judge blocks Oklahoma Islamic law ban
Zach Zagger on November 30, 2010 8:54 AM ET

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[JURIST] A judge for the US District Court for the Western District of Oklahoma [official website] on Monday ordered a preliminary injunction [text, PDF] blocking the enforcement of the controversial Oklahoma constitutional amendment [SQ 755 text, PDF] banning the courts from considering international or Islamic law. Judge Vicki Miles-LeGrange ruled in favor of the plaintiff, Muneer Awad, executive director of Council on American-Islamic Relations (CAIR) [advocacy website] in Oklahoma, who brought the suit claiming that State Question 755 (SQ 755) violates the First Amendment [text] because it stigmatizes his Muslim religion. Miles-Legrange found that Awad was substantially likely to succeed on the merits:
Specifically, the Court finds that plaintiff has made a strong showing that State Question 755's amendment's primary effect inhibits religion and that the amendment fosters an excessive government entanglement with religion. While defendants contend that the amendment is merely a choice of law provision that bans state courts from applying the law of other nations and cultures, regardless of what faith they may be based on, if any, the actual language of the amendment reasonably, and perhaps more reasonably, may be viewed as specifically singling out Sharia Law, conveying a message of disapproval of plaintiff's faith.
Miles-LeGrange also stressed that the Bill of Rights was meant to protect the majority from taking away rights of individuals. SQ 755 was overwhelmingly approved [JURIST report] in the November 2 mid-term elections with 70 percent of the vote.

Miles-LeGrange's preliminary injunction comes less than a week after she extended a temporary restraining order she issued [JURIST report] just six days after the election, stopping the Oklahoma Board of Elections [official website] from certifying the results. SQ 755 would prevent Oklahoma courts from "look[ing] to the legal precepts of other nations or cultures," requiring them only to look to legal precedents of other states for guidance, provided that state does not use Islamic law. It was sponsored by state Representative Rex Duncan (R) [official website], who described it as a preemptive strike [Daily Mail report] against the use of Islamic law in Oklahoma that would undermine [MSNBC report, video] Judeo-Christian principles on which he says the US is founded. Critics contend [JURIST comment] that it is based simply on an irrational fear of everything Muslim.




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Leaked cables reveal US urged Germany not to prosecute CIA officials for rendition
Zach Zagger on November 30, 2010 7:57 AM ET

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[JURIST] The Bush administration urged Germany not to prosecute Central Intelligence Agency (CIA) [official website] officials involved in the alleged illegal arrest and torture of German citizen Khaled El-Masri [JURIST news archive] under the administration's extraordinary rendition program [JURIST news archive], according to a document released Sunday by WikiLeaks [website; JURIST news archive]. The document [text], dated February 2, 2007, is a cable originating from the Berlin Embassy describing a discussion with German Deputy National Security Adviser Rolf Nikel about potential international arrest warrants dealing with the El-Masri case. The cable says that then-deputy chief of the US mission to Germany, John Koenig, pressured Germany with the intention "not to threaten Germany, but rather to urge that the German Government weigh carefully at every step of the way the implications for relations with the U.S." German prosecutors had obtained arrest warrants on January 31, 2007, for the 13 CIA officials involved but decided not to seek extradition [JURIST reports] later in the year, after the meeting with the US. The leaked document is seen as proof of the diplomatic pressure the US has put on even some of its strongest allies over its handling of terrorism suspects. Ben Wizner of the American Civil Liberties Union [advocacy website] criticized [statement] the US's action as a way to shield officials from accountability saying, "[t]he best way to restore our standing in the world, reassert the rule of law and strengthen our democracy is to support, not obstruct, meaningful accountability for torture."

WikiLeaks is a website which purports to be a not-for-profit media organization that anonymously publishes leaked classified government documents. It has recently come under controversy due to a string of leaked documents including the cable in the El-Masri case. The US Department of Justice (DOJ) and the Department of Defense (DOD) [official websites] said Monday they were conducting criminal investigations [JURIST report] into WikiLeaks over its release of confidential government communications. El-Masri claims that the CIA kidnapped him while he was traveling to Macedonia in 2003 and transported him to a secret detention facility in Afghanistan where he was held for four months. The case has been a controversial issue in both the US and in Europe. In October, the European Court of Human Rights (ECHR) [official website] announced that it will review the involvement [JURIST report] of the Former Yugoslav Republic of Macedonia in El-Masri's arrest. In May, the Spanish National Court Office of the Prosecutor petitioned judge Ismael Moreno [JURIST report] to issue arrest warrants against the 13 CIA officials allegedly involved. The Prosecutor's Office argues that the court has jurisdiction to issue the warrants because the agents made a stop in Spanish territory using hidden identities without official Spanish government authorization to do so.




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